J and J O'Brien Pty Limited v South Sydney City Council
[2001] NSWLEC 128
•07/26/2001
Reported Decision: (2001) 120 LGERA 8
APPEAL DISMISSED
Land and Environment Court
of New South Wales
CITATION: J & J O'Brien Pty Limited v South Sydney City Council [2001] NSWLEC 128 PARTIES: APPLICANT
RESPONDENT
J & J O'Brien Pty Limited
South Sydney City CouncilFILE NUMBER(S): 40160 of 2000; 11004 of 2000 CORAM: Cowdroy J KEY ISSUES: Development Consent :- re-tiling of facade of hotel located in heritage conservation area undertaken without development approval - whether development approval required - work undertaken despite knowledge of restrictions upon development of buildings in heritage conservation area LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 96 CASES CITED: DATES OF HEARING: 6/4/01, 7/4/01, 6/6/01, 7/6/01 DATE OF JUDGMENT:
07/26/2001LEGAL REPRESENTATIVES:
APPLICANT
Mr T Hale SC with Mr P Boslter (Barrister)SOLICITORS
Aubrey F Crawley & CoAPPLICANT
SOLICITORS
Mr S Griffiths (Solicitor)
Pike Pike & Fenwick
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40160 of 2000; 11004 of 2000
CORAM: Cowdroy J
DECISION DATE: 26/7/01
1. By application class four the applicant challenges an order issued by South Sydney City Council (“the council”) requiring the removal of tiling to the ground floor facade of the Marlborough Hotel (“the hotel”). Additionally, the applicant has instituted class one proceedings appealing from the council’s decision to issue the order.
2. The applicant is the owner of the hotel which is located at the intersection of Missenden Road and King Street Newtown (“the site”). The hotel was acquired by the applicant in 1984. The site is affected by the provisions of the South Sydney Local Environmental Plan 1998 (“the LEP”) and the Development Control Plan 1997 (“the DCP”).
3. At all relevant times the site has been located within a heritage conservation area. Until the 28th July 2000 development of the site was restricted by cl 23 of the LEP which relevantly provided as follows:-
1 The following development may be carried out only with development consent:
(a) demolishing, defacing, damaging or moving a heritage item or a building within a heritage conservation area, or
(b) altering a heritage item or a building, work or relic within a heritage conservation area by making structural changes to the exterior, or
(c) altering a heritage item or building, work or relic within a heritage conservation area by making non-structural changes to the detail, fabric, finish (including painting of the exterior) or appearance of its exterior, except changes resulting from any maintenance necessary for its ongoing protective care which does not adversely affect its heritage significance, or
(d) moving a relic, or excavating land for the purpose of discovering, exposing or moving a relic, or
(e) erecting a building on, or subdividing land on which a heritage item is located or which is within a heritage conservation area.
4. Pursuant to the provisions of Amendment 3 to the LEP which was gazetted on 28 July 2000, development is now restricted by cl 23A thereof which relevantly provides as follows:-
23A Protection of heritage conservation areas and heritage streetscapes
(1) A person must not:
…
- except with the consent of the consent authority.
5. Clause 6(1) of Amendment 3 to the LEP contains a savings provision as follows:-
Local environmental plans and deemed environmental planning instruments apply to development applications lodged but not finally determined before the commencement of this plan as if this plan had been exhibited but had not commenced.
The applicant is entitled to the benefit of the savings provision and accordingly the unamended cl 23 of the LEP applies to these proceedings.
6. The ground floor street frontages of the hotel were clad with ceramic tiles (“the tiles”) which had existed since the construction of the hotel in 1940. Some of the tiles had been previously damaged and replaced, and in 1998 the applicant made an inquiry of the council concerning the possibility of renovating the ground floor facade. In response the applicant was advised that development consent would be required as a pre-requisite to such work being undertaken because the hotel was located within a heritage conservation zone.
7. Development application U00/00429 (“the application”) dated 5 May 2000 was submitted by the applicant to council pursuant to s 78A of the Environmental Planning and Assessment Act (“the EP&A Act”) seeking consent for the removal and replacement of the existing facade with new ceramic tiles. The application provided the following details of the proposed work:-
Details: remove all wall tiles from the King Street and Missenden Road elevations at ground floor level and replace with new tiles. The new tiles match the bond pattern and tile dimensions of the existing and the dado tile detail will be reproduced but the colours differ from the original.
The application was supported by a Statement of Environmental Effects prepared by Joshua Farkash and Associates Pty Ltd dated 7 April 2000 which stated inter alia:-
The facade will be retiled using quality ceramic tiles layed in the same bond pattern as the original. The new tiles will match the dimensions of the original and the details of skirting course tiles and main body with the thin banding will be repeated.
It is proposed to use a deep terracotta tile for the skirting course and a lighter cream tile for the main body with banding tiles of deep blue.The colours of the new tiles will not match the existing tiles. Matching tiles are not available.
The application was also supported by a ‘Tiling Assessment’ prepared by Brian McDonald and Associates, Architects dated 6 August 1999, who were retained by the applicant.
8. By Notice of Determination of a development application dated 30 May 2000 the council granted consent to the application subject to conditions including a requirement that the applicant apply for a construction certificate (“the consent”). Condition 3 provided:-
3. That the new tiling is to replicate the pattern coursing, details and proportions of the original tiling.
9. An application to modify the consent was lodged on 20 June 2000 pursuant to s 96 of the EP&A Act. The modification related to entrance floor tiles and sought an alteration to the materials to be used in respect of such works.
10. On 22 June 2000 the council notified the applicant by letter that a construction certificate would not be required and that the removal of the condition requiring such certificate in the consent would be incorporated in the response to the pending application made pursuant to s 96 of the EP&A Act. The letter continued:-
With regard to the commencement of work on the site, retiling can commence immediately as the development application has been approved and as the proposed work is regarded as maintenance work a construction certificate is not required.
11. By letter dated 28 June 2000 the applicant notified the council that replacement tiles of the dimensions of the existing tiles, namely 150 mm x 300 mm were not available. The applicant also stated that a more durable vitrified (as opposed to ceramic) tile was available but only in a larger size, namely 300mm x 300mm. Such letter continued:-
The tile company can cut the tiles to 150 mm x 300 mm, but they cannot reproduce the edge to match the other three sides. This edge is produced in the manufacturing process of the tile. I have submitted sample tiles for your review.
Council treated such letter as an application pursuant to s 96 of the EP&A Act to vary the consent.
12. Inspections carried out on 18 July 2000 by council officers revealed that all of the tiles had been removed from the facade. A council memorandum of this date noted that a sample board of the replacement tiles originally proposed had been submitted to council and approved. It also noted that the change from ceramic to vitrified clay was acceptable and that samples of the vitrified tile were to be submitted.
13. By letter to the council dated 24 July 2000 Mr Crawley, on behalf of the applicant, complained that the council had misled the applicant by claiming that the hotel was ‘heritage listed’. The letter was addressed to Mr Ken Hawke, Director of the council, and contains a statement that the replacement tiles had already been purchased. The letter unequivocally stated that the re-tiling would take place using the 300mm x 300mm tiles unless notified to the contrary.
14. Council disputes that any basis existed to mislead the applicant as alleged. On 27 July 2000 the area planning manager responded by letter, noting that repeated attempts to make telephone contact with Mr Crawley had been unsuccessful. The letter advised the applicant in specific terms that the proposal contained in the applicant’s letter of 24 July 2000 was not approved, and suggested that the applicant await the determination of the application made pursuant to s 96 of the EP&A Act to vary the consent. The letter states, inter alia:-
The best course of action is for you to await preparation of a report to the Planning and Development Committee (Jason Chudleigh) where you could address the Committee before a decision is made by Council.Although the proposed works do not require a Construction Certificate (being “maintenance”), they do certainly require a Section 96 approval to modify conditions of the development application. The work is not exempted as “minor building work” in Local Environmental Plan 1998 because this definition excludes “the removal of additional and restoration of a building as closely as possible to original appearance”.
15. On 28 July 2000 an inspection by council was carried out, and a meeting held with Mr Crawley. At that meeting, despite warnings not to undertake re-tiling, Mr Crawley indicated that tiling work would proceed on or after 28 July 2000.
16. On 10 August 2000 the Planning and Development Committee recommended to council that the application be refused, as follows:-
That having considered the application by J.J O’Brien P/L under Section 96 of the EP&A Act to vary a development consent granted on 30 May, 2000 for the replacement of exterior wall tiles on an existing hotel by the deletion or amendment of the following conditions:
The application be refused for the following reasons:5. That the floor tiling the recessed entrances is not to be retiled
(1) The proposal would adversely affect the appearance of the landmark building and the heritage significance of the Conservation Area.
(2) The proposal does not comply with the controls or objectives contained in the King Street and Enmore Roads DCP.
(3) Approval of the application would create a precedent which adversely affects the streetscape of Conservation Areas
17. On 16 August 2000 the s 96 application was refused by council and the applicant was notified of such refusal between 16 August and 1 September 2000.
18. On 1 September 2000 the applicant make a further application pursuant to s 96 of the EP&A Act to vary the consent, as follows:-
1. That the tiles to the external walls be 300 mm x 300 mm.
2. That the floor tiling to the recessed entrances be tiled in black granite tiles.
19. Inspections carried out by council officers in the following days established that work was being carried out on the re-tiling of the facade of the hotel. On 12 September 2000 a notice of proposed order was served attaching a draft order alleging, inter alia, that the tiles were installed without development consent which would ‘destroy the horizontality of the facade and the pattern and the type of tiling on the front elevation of the hotel does not reflect the interior character of the building.’ A breach of condition three of the consent was also alleged. The draft order required removal of such tiles.
20. In addition a letter addressed to the applicant’s solicitors was forwarded by the council’s solicitors requesting an undertaking that tiling would not proceed other than in accordance with the consent. A response was written, challenging any foreshadowed proceedings and asserting that the re-tiling works are ‘maintenance works, as is confirmed by council’s letter to our client dated 22 June 2000.’
21. On 12 September 2000 the council issued an order to comply with the development consent pursuant to par [15] in the table to s 121B of the EP&A Act in substantially the same terms as the draft order, and a demolition order pursuant to par [2] in the table to s 121B of the EP&A Act (“the orders”).
22. By letter dated 14 September 2000, the applicant responded to the issue of the orders, stating inter alia as follows:-
As Council acknowledged in its letter dated 22 June 2000 (a copy of which is enclosed), the replacement of cracked and broken tiles with new tiles does not require development consent.
All the tiling is now completed, and the Hotel is trading.The development application number U00-00429 and the Consent was unnecessary, and we do not rely upon it.
23. By letter dated 19 September 2000 the council responded, stating, inter alia:-
We note that our letter dated 22 June, 2000 stated that a construction certificate was not required. However, it did not state that a development application was not required but to the contrary advised that work could commence as the development application had been approved. Therefore development consent was necessary and any work could be only be carried out in accordance with the conditions of the development consent.
The issues
24. The applicant appeals to this Court from such orders pursuant to s 121ZK of the EP&A Act (“the class 1 proceedings”). The applicant also seeks declarations that such orders are void as well as a declaration that the replacement of the tiles did not require development consent (“the class 4 proceedings”).
Was development consent required?
25. The applicant submits that since the re-tiling was ‘maintenance’ pursuant to cl 23 of the LEP that it was not necessary to seek development approval for such work.
26. Part 5, sch 1 (cl 5) of the LEP defines ‘maintenance’ as:-
the protective care of the existing facade, finish, appearance or setting of a heritage item or a building or work within a heritage conservation area.
27. Section 4 of the EP&A Act defines ‘development’ as including, inter alia:-
The word ‘ work ’ is not defined. The Court can therefore apply the usual meaning of such word which is defined in the Shorter Oxford English Dictionary (Clarendon Press, 1984) as ‘ something that is or was done ’. Accordingly, the replacement of tiles constitutes the carrying out of ‘ a work ’ within the meaning of that definition contained in s 4 of the EP&A Act.
28. Clause 23(1) of the LEP specifically requires development consent for the carrying out of development. An exception is contained within cl 23(1)(c). Changes resulting from any maintenance do not require development consent provided that they are ‘necessary for its ongoing protective care which does not adversely affect its heritage significance’.
29. The contention that the removal of the existing tiled facade of the hotel and the replacement of a new facade is merely maintenance pursuant to the definition given in the LEP cannot be sustained. The reports of the applicant’s architects as well as the description of works stated in the development consent demonstrates that the work clearly was of a different type to ‘protective care’ of the hotel. Such work involved the removal of an item of critical significance to the appearance of the hotel.
30. Accordingly, development consent was required for such work, since the work was ‘development’ as defined in s 4 of the EP&A Act.
31. The applicant submitted that because council indicated that a construction certificate was not required, a development application was not required for the re-tiling of the facade. Such submission is predicated upon s 81A(2) of the EP&A Act which relevantly provides:-
81A(2) The erection of a building in accordance with a development consent must not be commenced until:-
(a) a construction certificate for the building work has been issued by:
(i) the consent authority, or…
32. It does not follow that development consent was not required because council did not require a construction certificate. Section 81A relates only to a development consent for the erection of a building which is clearly not the work for which consent was sought. Mr Hawkes letter of 27 July 2000 was erroneous in respect of the classification of the work as ‘maintenance’.
Was the applicant misled by council?
33. The applicant submits that the council had misled the applicant into believing that the hotel was ‘heritage listed’ when it was not and that it applied for development approval when it was unnecessary. The applicant submits that if it had known that the hotel was not heritage listed then it would not have applied for development consent since the retiling could be considered ‘maintenance necessary for its ongoing protective care’ pursuant to cl 23(1)(c) of the LEP. However there is further requirement of the definition contained in cl 23(1)(c) of the LEP, namely that the maintenance ‘does not adversely affect its heritage significance’.
34. A facsimile had been forwarded by council to the manager of the hotel, Mr Stephen Pillet dated 3 November 1998 which specifically advised the applicant that the hotel was located in the King Street Conservation Area. Three documents were incorporated with the facsimile:-
1. Recommendations from the King Street/Enmore Road Main street study - Heritage Paint Scheme recommending ground floor wall tiles being retained and the existing colour scheme as being acceptable.
2. Extract from LEP 1998
3. Extract from the exhibited draft Heritage Development Control Plan.
35. Although Mr Pillet has no record in his files of such facsimile and has no recollection of its receipt, these facts are irrelevant since the applicant’s advisers were clearly on notice of the requirements of the planning regime. On 7 April 2000 the applicant’s architect prepared a Statement of Environmental Effects to support the development application which acknowledges that the hotel was not a heritage item, but located in the King Street Heritage Conservation Area pursuant to the LEP. Additionally, the report of Brian McDonald and Associates dated 6 August 1999, architects retained by the applicant, acknowledges the same facts. Accordingly, both the applicant and its retained experts were aware of the specific requirements of the planning legislation. Significantly, these experts have not been called as witnesses.
Exercise of discretion
36. The Court has had the benefit of expert evidence concerning the effect of the replaced tiles upon the hotel. Wesley Roy Lumby, a heritage architect considered that the hotel was ‘one of the finest examples of Interwar Functionalist style hotel within Sydney’s metropolitan area and within the locality around Newtown.’ Mr Lumby said that the hotel had been designed by architect John Hellyer who was responsible for designing several hotels of architectural merit during the 1930’s and that the hotel was an item to which reference was made in an internationally acclaimed book written by Mr Lumby and a Mr Patrick Van Daele entitled, ‘A Spirit of Progress: Art Deco Architecture in Australia’.
37. Mr Lumby considered that the ceramic tiles on the ground floor exteriors comprised an ‘integral and significant part of the architectural design and character of Interwar hotels’. He considered that the replacement tiles are inappropriate because of their placement and the large size, colours and pattern which has had a negative impact upon the heritage significance of the hotel. Further, since the hotel comprised an important part of the streetscape in this portion of Newtown the removal of the original tiles has ‘had a negative impact on the heritage significance of the streetscape and on the conservation area itself’.
38. Robert Power, a planning expert retained by the applicant provided a report. Mr Power considered that approximately 40% of the entire exterior surface on the ground floor comprised curved edges. Accordingly, the replacement tiles, because of their larger dimensions, have been cut extensively to follow the curves of the building. Mr Power agreed that the grouting of the tiles was lighter in colour than the original. He considered that the replacement tiles had ‘marginally impacted on the heritage significance of the building’ but that such impact was significantly less than the new colour scheme which council had approved. Mr Power opined that the dimensions of the tiles ‘should be given no greater priority than factors such as colour, surface finishes or dimensions’.
40. Condition 3 of the consent required that the pattern coursing, details and proportions of the original tiling be retained. Samples of the vitrified clay tiles provided to council were held to be satisfactory provided the size of each tile was reduced from the proposed 300 mm x 300 mm, to 300 mm x 150 mm. The colour of the proposed tiles was also satisfactory to the council.
41. The tiles as affixed are 300 mm x 300 mm; the coursing is different; and the details and proportions differ. A decorative band of tiles has been inserted in which tiles have been affixed diagonally which bears no relation to the original tiling. As a consequence, the appearance of the hotel is radically altered from its original state.
42. The applicant claims that the ceramic tiles originally submitted to council, in respect of which council granted its consent, were unprocurable. Mr Pillet, the hotel manager, testified that the inquiries he made by telephone to suppliers to obtain tiles of the requisite dimensions were unsuccessful. That fact is challenged by council. The evidence of Ms Christina Van Aierop, of the Renditions Corporation, one of the tile suppliers of whom an inquiry was allegedly made by Mr Pillet suggests that tiles of the required size, style and colour were readily available at the time. The Court is not satisfied that the tiles originally proposed were unprocurable
43. The evidence establishes that the replacement tiles had been ordered by the applicant prior to 18 July 2000. Accordingly, the inference can be drawn that the applicant had determined to proceed with the tiles of its own selection without the necessary approval. Such conclusion is confirmed by conversations between council officers and with employees of the applicant who stated that the re-tiling work would proceed as from 28 July 2000 despite the specific warning by council that it did not approve of such work.
44. The work undertaken, according to the evidence of Mr Power and Mr Lumby, has affected the heritage significance of the hotel. The Court is therefore satisfied that such work did not constitute ‘maintenance’ and it was undertaken without the requisite development consent.
Conclusion
44. In undertaking the renovation it would appear from the photographs that the previous ‘Art Deco’ appearance of the hotel has been significantly altered. Having considered the evidence in both the class one and the class four proceedings the Court finds that both applications should be dismissed.
Orders
45. The Court orders that:-
1) Proceedings 40160 of 2000 be dismissed.
2) Proceedings 11004 of 2000 be dismissed.
3) Costs be reserved.
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